STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

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EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distributionWhen read in context, there are many possibilities for interpreting the language in a positive fashion. Settingaside the criticisms about Convention No. 169, 42 it has proved useful to indigenous peoples in domestic policydevelopment 43 and litigation, 44 as well as in formal human rights complaints to the Inter-American Commission onHuman Rights. 45International CovenantsThe Universal Declaration of Human Rights was utilized as a starting point for the codification of first and secondgeneration rights, namely civil and political rights as contained in the International Covenant on Civil and PoliticalRights (ICCPR) 46 and economic, social and cultural rights as contained in the International Covenant on Economic,Social and Cultural Rights (ICESCR). 47 It is interesting to note that some of those engaged in the process grappledwith the fact that civil and political rights and economic, social and cultural rights were interdependent. 48Common to both the ICCPR and the ICESCR is the fact that they are binding upon State parties to the Covenants—creating international legal obligations that relate to the very principles and purposes of the United Nations42See S. Venne (1989).43 The following information was downloaded from the ILO website at http://www.ilo.org: “Prior to its submission to the Committeeof Experts of the ILO, the Government of Norway sent its latest report on the implementation of Convention No. 169 to the SamiParliament for its comments. These comments form an integral part of the report, under the terms of an agreement entered intobetween the Norwegian Government and the Sami Parliament. This co-operation is established as a permanent procedure toensure the inclusion of the opinion of the Sami Parliament in the formal reporting procedure on Convention No. 169. The SamiParliament has indicated its willingness to enter into an informal dialogue with the Committee of Experts, together with theNorwegian Government, to facilitate the implementation of the Convention. The Government has stated that it shares the wishto facilitate the implementation of the Convention in this way, believing that open co-operation between governments and representativeindigenous bodies may contribute effectively to the international promotion of indigenous rights and cultures, andthe Government therefore fully supports the suggestion of a supplementary dialogue.”44 The following information was downloaded from the ILO website at http://www.ilo.org: “With regard to the environment, theNorwegian Ministry of Culture has instructed the regional board responsible for managing crown land in Finnmark to ask theopinion of the Sami Assembly before taking any decision concerning land-use projects. The reindeer herding districts arelegally entitled to be consulted, have the right to be compensated, in the event of economic damage, and may bring lawsuitsbefore the courts if they consider a project inadmissible.” In this case, the provisions of ILO Convention No. 169 were invokedand utilised by the Sami peoples. Such use of the language of the Convention is only available to those whose respective statemembers have ratified the treaty.45 See the Petition lodged by Jaime Castillo Felipe, on his own Behalf and on Behalf of the Mayagna Indian Community of AwasTingni Against Nicaragua, re-printed in 9 St. Thomas L. Rev. 164 (1996). This petition was prepared by S. James Anaya, Counselof Record, and invokes various provisions of ILO Convention No. 169, as well as the United Nations draft Declaration on theRights of Indigenous Peoples, the draft Inter-American Declaration on the Rights of Indigenous Peoples [discussed above], andthe American Convention. See also the Petition by the Western Shoshone (1993); the Mayan Cultural Council of Belize (2000);and the complaint filed by S. J. Anaya and R. A. Williams, Jr., on behalf of the First Nation of Carrier Sekani of British Columbia,Canada (2000). See also Anaya (1998), 1.46 International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly on 16 December 1966and entered into force on 23 March 1976. General Assembly Resolution. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc.A/6316 (1966), 999 UNTS. 171.47 International Covenant on Economic, Social and Cultural Rights (1966), adopted by the United Nations General Assembly on 16December 1966 and entered into force 3 January 1976. General Assembly Resolution 2200A (XXI), 21 UN GAOR Supp. (No. 16) at49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3,48 Steiner and Alston (1996), 17. The authors re-print the “Annotations on the Text of the Draft International Covenants on HumanRights,” UN Doc. A/2929 (1955), which include: “[Between 1949 and 1951 the Commission on Human Rights worked on asingle draft covenant dealing with both of the categories of rights. But in 1951 the General Assembly, under pressure from theWestern-dominated Commission, agreed to draft two separate covenants]…to contain ‘as many similar provisions as possible’and to be approved and opened for signature simultaneously, in order to emphasise the unity of purpose….Those who were infavor of drafting a single covenant maintained that human rights could not be clearly divided into different categories, nor couldthey be so classified as to represent a hierarchy of values. All rights should be promoted and protected at the same time. Withouteconomic, social and cultural rights, civil and political rights might be purely nominal in character; without civil and politicalrights, economic, social and cultural rights could not be long ensured….”HUMAN RIGHTS | 201
EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distributionCharter. It is important to underscore also the common Article 1, which recognizesthe right of peoples to self-determination. Article 1 is clearly a collective rightof “peoples” to self-determination that contrasts with the overall individualrights orientation of the two Covenants. Both the ICCPR and the ICESCR alsooutline State party obligations for the fulfilment of these basic human rights.Finally, in regard to implementation and monitoring, the treaty-based bodiesestablished by the Covenants are significant not only to the realization of suchhuman rights by individuals and the monitoring of violations of human rights bystate governments but also to an understanding of the content of such rights toboth individuals and groups.The rights enshrined in the Universal Declaration and the Covenants do attach toindigenous individuals and collectivities, who also strive for human dignity andenjoyment of their natural rights as human beings. Hence, the use by indigenouspeoples of the treaty bodies responsible for overseeing state implementation ofthe rights embraced by the Covenants. Such actions have dramatically increaseddue to the efforts of indigenous peoples, the elaboration of an indigenouscultural context and reliance upon such expressions by treaty body members.Though indigenous peoples, nations and communities have remained distinctfrom existing state governments, such actions are even more critical becausethe creation of states is a historical, legal and political reality that indigenouspeoples must deal with.there is increasingawareness and useof the treaty-basedhuman rights bodies byindigenous peoples, aswell as greater sensitivitytoward indigenouspeoples’ rights and issuesbeing shown by theirrespective membersIn regard to accommodating the human rights of indigenous peoples, we areseeing a noticeable difference in the more recent comments and concludingobservations of the human rights treaty bodies. There is increasing awarenessand use of the treaty-based human rights bodies by indigenous peoples, as wellas greater sensitivity toward indigenous peoples’ rights and issues being shownby their respective members.These treaty bodies are providing for an indigenous cultural context in theinterpretation of the existing international instruments, such as the Human RightsCommittee under the ICCPR and the Committee on the Elimination of RacialDiscrimination 49 (CERD) under the International Convention on the Elimination ofAll Forms of Racial Discrimination. 50 Though each of the treaty bodies have hadthe opportunity to review cases emerging from indigenous individuals, on behalfof their communities, the more recent work of the treaty bodies is evidence ofa much more expansive and inclusive interpretation of human rights and theirattachment to the distinct circumstances of indigenous peoples. Now, with theadoption of the United Nations Declaration on the Rights of Indigenous Peoples,it is highly likely that the treaty bodies, Special Rapporteurs and others will rely49For a description of the Committee’s work in regard to indigenous peoples, see Anaya(1996), 100-101 and 162-166.50The International Convention on the Elimination of All Forms of Racial Discrimination wasadopted by UN General Assembly on 21 December 1965, opened for signature on 7 March1966, and entered into force on 4 January 1969. General Assembly Resolution 2106A (XX)UNTS, Vol. 660 (1966), 195; reprinted in ILM.1966 (5), 350.202 | CHAPTER VI
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STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

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